The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-11-15

brought before the grand jury ior exam
nation, seems 10 have been well founded
Judge DuBose rendered his decision in
the matter yesterday as follows:
THE DECISION.
I'm the matter of investigation by the
grand jury OF Pat kallaher's books, rs
" harinAstCr oithe taxing district OF Shell
by county, the grand jury ordered the
isSuSncV snd service Of n subpoena upon
the >,lid hNllaher, directing him To bring
With him all the records. books and
other papers OF his said office, 20 appear
beiUry che Judge OF the criminal court OF
Shelby county on a day named, 20 cx-
bibit stld books, pap,rs. etc, for invest.
CATION hy the grand jury.
"rbC defendant, by his counsel, comes
into Currt and moves the court To ouash
the subpoena on the following grounds
First That the grand jury had no legal
authority Co onlyr subpoena TO issue in
such mgtter, Of investigation. Second 3D.
That under the authority given the grand
jury hy the statute. inc Access at all proper
hours. 10 The oiliccs oi the county officers.
sni a. examination without change of all
pcorJlS AMI other paper OF any OF said Of
tyvrs On anyway connected with their du.
uyS, : not sufficient a. authorize the grand
jury o. send Tor the Wharimastcr and COM
pei him tD bring his books before them for
examination. 1hinl That 20 eufonN, obc.
dicncc to this subpoena the Wharimastcr
would or might b. compelled 60 give evil
dtnce sg.,ins, himself which would b. in
violation Of constitutional provision in.
tended oT his protection.
AS Co the t.nt OF these objections tothc
subpoena, / think 10 vel taken, ami sui.
nciynt '1 gus,h without mon.
Tho ru4' 1912 VI. * W enumcratcs
s,l the y,>g, IN which the grand Jury may
send ior witnesses. Tho scCiion ricrp.d
o. 3, Boa tA., language: The grand jury
shall >,ni Tor Wiiuts~gs whenever they ur
any OF them susISvt violation ui law
against gaming, tlrrl.nE disturbing public
WuNlIp, Die, naming twyu'y-thurc of.
fcu~rs, and VI which thp matter oi present
ingrir, j. not one. The statute giving in
Qui,itOrI power 90 the grand jury 90 o.
ihDsn tWrnty-thrg oHgus.s. h,Iug I'm de-
ru.aiiou ai thp common law. must D.
s,nctly construed. and cannot he extended
beyond thg CNTu-s provisions I'D toe
statutes. 18th Caldwell. Igr. "a lea. co.
AS to Che second point Oi Objection.
y AN|. % HNH ..H" AA'"HH |..N H'N|N.N .H.N N.NN
- b the office oi ihy Wharirulsigr ami
there examine bis books. rcurls and
'apgrS, BOAT cannot compel him in bun.
li. books etc, before them. This seem, Z
% b. not so much question oi law Oh '0 I
determined - rule of pruprCty o. D. Ch- i
,rcd between The wllriuastrr and grand /
my In their intercourse in dealing with
his matter. ] say this in the light uf the
1ourl hi0r me. anil what has been said
y counsel. AZ 20 whether the grmi jury /
iould % to the onicr M be- have ono 0f I
he Wharim1-icr or whether the wharf
iasicr should 90 90 the request ui the
und jury To the cpurt-housc with his
ooks Tor examination, should not prevent
! In the slightest manner ob,trurt the !
lain purpose In view the examination OF
he books aud papcu in controversy. Nor
10 think this can be seriously urged by
'Uunsgl a, reason why the Subpoena
hould De- qushCd. ~ Il Is q difficulty ~
asily gotten rid OF by an agreement be-
Nccn The parties, providing, however |
iat both sides arr equally anxious for the
lvcs,iGiiun.
1T appear that the grand jury has not
My uddrt-yd q very polite pommunica- |
on io the wh1timuipr requesting him To
ave his h.oks with thc clerk ui the Grim
nal court iOr the convenience oi cNlminl.
ION, but failing ia tliis to get possession oi
ho books, anounrl sent committee
rom their body 10 his supposed place OF
'usincss or office for the purpose oi there
the books. hut IN this instance
j. well a- the former. iut reasons given hy /
lac whurmJsicr, they failed In getting .
light of the so much coveted records.
AS to the third and last objection tn |
hc subpoena. that the uhurlmastcr might /
'riminaic himself hy being compelled 10 |
testify in rurl tp the books OF his office. /
This might be- True ID tie PURPOSE Of the /
uhpcna was 10 make him witness. but. |
n The ease now stands. hc need not in. |
.uke that provision II the constitution IN |
shiCh an accused in q criminal puscru-
ion shall not be compelled a. give cvi. |
hence against himself The subpoena speaks |
plainly. and y easily understood II h |
n"i th1t Tat kaiiuhUr shall testify be-, /
iorc The grand jury, hut he shall bring |
With him thr books, records and plprr, |
m amy way connected with his dulles ns |
NhlfiWlsivr, and shall exhibit them to thc /
grand jury Tor the purpose Of examination.
4 presume That ii will not be- ConicndCd /
ihai % demand hy thg grand Jury Tor the |
books Of public official Tor the purpose oi |
examination would hr un infringement ui |
ln right not % hc compelled to give cyi. |
d'uuu against himself This duty ol OK.
um.uIug ihc books IT public officials by |
uie. grant jury Is cniuInCi los law and
With view o. ascertain their correctness
uhl i' r,lmri the conduct Of the officer
touching DIS official conduct. II b. not
criminal prosecution wherein the accused
MAIN ilO night 90 boz hcarl by himself and
counsel, aud shall not Boz compelled tn
give evidence against himself II wac un
necessary tu nuticr these lasl two oLicc.
lions in uociling this matter. and would
mol have been, lut in Difference tu the
bhle counsel who urged so earnestly them
upon ih" attention Ui The court The nf-t
Nhlr'upn w herein stated. b. decisive of
VIC question submitted for decision. and is
tnlhr'n' mason lurgufhus tLp subpruu.
lti au order 10 that effect bp entered"
y iUH minutes before th1 adjournment
81 ihe court the foreman came I'M with his
own written application and that oi n. D..
thanks. wr'iiur tho Tact Of their inability
u further prosecute the investigation
against kullahur unless thpy could have
nrcgss ip Ibis books and accounts. IN rr.
tpouc g. tliIs request. JudV Uullusp is.
tu,d The following orlor, aud the needed
d 1.la D. likely TO be- forthcoming lrom Mr..
ka'lahDr
10 hcing made 20 appear 10 this court
by affidavit Of s. II. Brooks. thd iorc.
man Of the grand jury Of shelby county.
Tennessee, and nlso by the affidavit Of II.
u. Shnnks another member Of the saId
ginni jury. that IN the examination at.
tempted 10 hc made by the lasl grand
Jury 81 ihc books, records and papur. ~
the office OF whHrmmtcr Of the luNiug
district Of shelby county, Tennessee.
They were unable tO obtain access tn said
lnuL. r...r.I. ~. 49,. III = - -